1 The FDIC has been sued as the statutory successor to the Federal Savings and Loan

Insurance Corporation (FSLIC). United States Court of Appeals,

Fifth Circuit.

No. 92-1618.

Peter W.G. McNEILY, Liquidator for Independent American Participating Income Fund, L.P.,

Plaintiff-Appellant,

v.

UNITED STATES of America; Resolution Trust, as Conservator for Sunbelt Federal Savings,

FSB; Resolution Trust Corporation, as Receiver for Sunbelt Savings, FSB; Federal Deposit

Insurance Corporati on, as Manager of the Federal Savings and Loan In surance Corporati on Resolution Fund, et al., Defendants-Appellees.

Nov. 10, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, DAVIS and SMITH, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Appellant challenges the dismissal of his damage suit against the United States and the Federal

Deposit Insurance Corporati on (FDIC) 1 for actions taken by federal regulators with respect to a failed

thrift and its subsidiaries. Finding the claims barred under the Federal Tort Claims Act, we affirm.

I.

Appellant W.G. McNeily is the liquidator of Independent American Participating Income

Fund, L.P. (the Income Fund), a dissolved Delaware limit ed partnership. He was appointed liquidator

after the Income Fund's managing general partner, Independent American Real Estate, Inc. (IARE),

filed a bankruptcy petition. IARE was a wholly owned subsidiary of Independent American Savings

Association (IASA), formerly a Texas-chartered savings and loan association.

McNeily's fift

h amended complaint alleg es t hat in 1983, IASA's controlling stockholder,

Thomas A. Gaubert, e mbarked on an aggressive program of lending and investing in Texas's

commercial real estate market. The complaint further alleges that IASA created the Income Fund as

a part of a scheme to deceive and defraud investors. The fund's st at ed purpose was to buyparticipations in first and second mortgage loans and other real estate loans which were held by

IASA. By means of three instruments, the partnership agreement, the prospectus, and the mortgage

service agreement, investors were led to believe that they would be buying into a safe investment in

a diversified co mmercial loan portfolio for Individual Retirement Accounts and Keough Plans.

According to these documents, IASA was the income fund's sole source of loan participations. IASA

agreed to identify loan opportun it ies for the Income Fund, negotiate the terms of the loans,

i nvest igat e the borrower's financial condition, and obtain its own independent appraisals. The

ultimate decision of whether the fund would invest in any participation was up to the Income Fund's

loan committee. The document s set forth various rules that the loan committee was required to

follow. For example, each participation had to be "economically advantageous to the partnership in

light of all surrounding circumstances"; the Income Fund could not acquire a participat io n which

exceeded 157 of the value of the portfolio, or which caused the portfolio to be invested more than

507 in risky land and constructions. All construction loans required a const ruct ion bond, and the

Income Fund was required to obtain a written opinion from an "independent, qualified advisor" that

the purchase price of the participation w as fair. Between March of 1985 and March of 1986, the

Income Fund raised about $21,000,000.

The fift h amended complaint alleges that, notwithstanding what the investors were told, IASA

intended, from the beginning, to use the fund as a means of pawning off its bad loans. The Income

Fund's loan committee, consisting of Richard H. Crowe, Jr., Jack R. Gaubert (J. Gaubert) and

Tommy G. Lane, was never independent from IASA: Crowe was a member of IASA's Board of

Directors, a Vice-President of IASA, a member of IASA's loan committee and executive committee,

a substantial stockholder of IASA, a member of IARE's board and, a t various times, IARE's

chairman, CEO and president; J. Gaubert was a member of IASA's Board of Directors, at various

times, the Board's vice-chairman and chairman, an office r o f IASA, a member of IASA's loan

committee and executive committee, a substantial stockholder of IASA, a member of IARE's board,

and a senior vice-president of IARE; and Lane was IASA's Chairman of the Board and president,

a member of IASA's loan committee and executive committee. The "independent qualified advisor"promised in the documents turned out to be Arthur L. Westcot, a senior vice-president of IASA, a

member of IASA's senior loan committee, and a substantial stockholder of IASA. Not surprisingly,

the Income Fund's loan committee did not turn down a single proposal offered by IASA.

The fifth amended complaint details a list, stretching from July 1985 to April 1986, of risky

and/or worthless loan participation purchases proposed by IASA and approved by the Income Fund's

loan committee. For example, between July and Sept ember of 1985, the Income Fund purchased

participations in loans known as Trafalgar, Trinity, Regency, and Landmark. The complaint alleges

that IASA and the In co me Fund's loan committee violated material provisions of the partnership

agreement prospectus and mortgage service agreement.

For example, with respect to the Trafalgar transaction, the complaint alleges that IASA failed

to disclose to the Income Fund that the borrower had a $720,956 negative cash flow, the participation

was in a second mortgage, and that the loan was for almost two millio n dollars more than the value

o f t he property. With respect to the Landmark participation, IASA did not disclose that t he

guarantor had substantial other nonperforming or defaulted loans with IASA.

The complaint alleges that, in the fall of 1985, Crowe, J. Gaubert, Westcot, and others

profited from their manipulation of the Income Fund by having IASA buy back their stock at grossly

inflated prices using cash generated by the Income Fund's purchase of participations in IASA loans.

The complaint further alleges that during the months of March and April of 1986, IASA

p roposed and the Income Fund's loan committee approved, purchases of participations in several

more risky and/or worthle s s loans. The Income Fund purchased participations known as Preston

Frankford (supplemental) and Bean/Landmark (supplemental) on Ma rch 6. It purchased

participations known as Northgate Construction, Hunter's Crossing and HCD/DeClara on March 31,

and a participation known as Piper Glen on Apr i l 7. According to the complaint, Crowe and J.

G aubert, fraudulently approved "certain" of these loan participation purchases on beha lf of the

Income Fund's loan committee.

With respect to the P iper Glen transaction, the complaint alleges that the loan committee

apparently never met, but further alleges that Crowe, J. Gaubert and Westcot "fraudulent lyparticipated" in this purchase at various steps. The complaint alleges that only one member of the

loan committee, Lane, approved the purchase of the participation in the HCD loan. The complaint

does not specify who approved the Northgate construction and Hunter's crossing loan participation

purchases. However, it alleges that Wescot served as the Income Fund's "independent qualified

advisor" in connection with all six March/April purchases. In addition, Thomas C. Gragg, a vice

president of IARE, signed the purchase agreement on behalf of the Income Fund. This same officer

signed the purchase agreement for the 1985 participations as well.

M cNeily alleges that federal regulators are responsible for losses stemming from the loan

participation transactions completed in March and April of 1986. By February of 1986, IASA had

run into serious financial difficulties. At that time, the Federal Home Loan Bank of Dallas (FHLBDallas) formally told IASA that it needed to enter into a supervisory agreement because its liability

growth had increased for two consecutive quarters at an annual rate greater than 257. IASA's board

agreed to FHLB-Dallas's proposed supervisory agreement. In March of 1986, IASA's Board

approved a resolution requiring the federal regulators to approve any sale of loan participations by

IASA to the Income Fund. During that month, federal regulators obtained the resignations of key

officers and directors of IASA, two of which were members of the Income Fund's loan committee.

On April 1, 1986, Milton Thomas, a former federal home loan bank board (FHLBB) member became

chief executive officer of IASA. On April 7, Tom Hendricks, a former FHLB-Dallas vice president,

became IASA's chief operating officer. Hendricks immediately inst alled himself as IASA's chief

operating officer of real estate and as head of the Income Fund's loan committee.

The fift h amended complaint alle ges t hat t he FSLIC and FHLB-Dallas either tacitly or

explicitly approved of or ratified the prior mis co nduct of IASA and further alleges that federal

regulators, while in control of the day -to-day operations of IASA, caused IA SA to breach i ts

contractual and fiduciary obligations to the Income Fund. It alleges that the federal regulators did

t his in order to use the Income Fund's assets to keep IASA afloat. The complaint alleges that the

federal regulators kept the Income Fund in the dark about IASA's financial condition and about

IASA's numerous breaches of the partnership agreement prospectus and the mortgage servicesagreement in order to use the Income Fund's assets. McNeily further alleges that the regulators failed

to disclose material facts concerning the Income Fund's particip at io n purchases during March and

April, facts which, if disclosed, would have led the Income Fund to take immediate action to rescind

those participations.

The fift h amende d co mplaint alleges claims against the FDIC and the United States for

breaches of contract, intentional breach of duty, negligent breach of fiduciary duty, negligence, gross

negligence, civil conspiracy to defraud, common law fraud, violations of Texas securities laws, breach

of duties of good faith and fair dealing, torti ous interference with contractual relations, and negligent

involvement in IASA's day-to-day operations. In addition, the complaint alleges claims against the

FDIC for violations of RICO, conspiracy to violate RICO, violations of the Securities & Exchange

Act of 1934, and violations of the Securities Act of 1933.

In February of 1991, the court dismissed seve ral counts of the complaint as to the United

States. In March of 1992, the district court dismissed the remaining claims against the United States.

Soon thereafter, the district court dismissed McNeily's claim against the FDIC and against RTC

Sunbelt Federal. In May of 1992, the district court designated its judgment as final under Rule 54(b)

of the Federal Rules of Civil Procedure and McNeily t imely appealed. Since that time, McNeily and

the RTC have entered into a settlement under which McNeily has voluntarily dismissed his claims

against the RTC. We therefore consider only McNeily's claims against the United States and against

the FDIC.

II.

The United States as a sovereign nation is immune from suit except as the United States has

consen ted to be sued. W illiamson v. U.S. Department of Agriculture, 815 F.2d 368, 373 (5th

Cir.1987). One of the vehicles by which the United States has consented to be sued is the Federal

Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80. The FTCA provides that the United States can be

liable in tort for any

negligent or wrongful act or omission of any employee of the Government while acting within

the scope of his office or employment, under circumstances where the United Stat es, if a

private person, would be liable to the claimant in accordance with the law of the place where

the act or omission occurred.28 U.S.C. § 1346(b). Congress, however, adopted several exceptions t o t his consent to be sued,

which must be strictly construed in favor of the United States. Atorie Air v. F.A.A., 942 F.2d 954,

958 (5th Cir.1991). Two such exceptions directly apply to McNeily's complaint. The first of these,

known as the discretionary function exception, provides that th e court s have no jurisdiction over

claims against the United States

based on the exercise or performance or the failure to e xercise or perform a discretionary

function or duty on the part of a federal agency or an employee of the Government, whether

or not the discretion involved is abused.

28 U.S.C. § 2680(a).

The second exception to the FTCA that is relevant to this case bars claims against the United

States "arising out of ... misrepresentation, deceit, or interference with contract rights." 28 U.S.C.

§ 2680(h). This exclusion encompasses claims for negligent as well as intentional misrepresentation.

Williamson, 815 F.2d at 377. It also covers both affirmative acts of misrepresentation and omissions

of material fact. P aul v. United States, 929 F.2d 1202 (7th Cir.1991). Moreover, causes of action

distinct from those excepted under section 2680(h) are n evert heless barred when the underlying

governmental conduct "essential" to the plaintiff's claim can be fairly read to "arise out of" conduct

that would establish an excepted cause of action. Atorie, 942 F.2d at 958. For example, a plaintiff

cannot avoid the reach of § 2680(h) by framing his complaint in terms of negligent failure to prevent

the excepted harm. Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985).

In dismissing McNeily's claims against the United States, the district court noted that the

FTCA provides the only basis of jurisdiction over the United States in the complaint. It then held that

all of McNeily's claims fell within the discretionary function exception to the FTCA. McNeily frankly

concedes, as he must, that the district court properly dismissed the fift h amended complaint's "causes

o f act ion based on the federal regulator's conduct in the day to day affairs of [IASA]," under t he

recent Supreme Court case of United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d

335 (1991). He contends, however, that some of the regulator's activities he relied upon for recovery

were not discretionary functions as defined in Gaubert.

Gaubert involved a similar tort suit against the United States resulting from the failure ofIASA, the same savings and loan association involved in today's case. Plaintiff's complaint against

the regulators in Gaubert paralleled McNeily's complaint in many respects. The G aubert plaint iff

complained of the regulator's actions in threatening to close IASA unless its management and Board

of Directors were replaced. The G aubert plaint iff also complained of th e regulators' actions in

replacing those officers and directors with new officers and directors including a former FHLB-Dallas

employee. The plaintiff in Gaubert further alleged that:

After the new management took over, FHLB-Dallas o fficials became more involved in IASA's

day to day business. They recommended the hiring of a certain consultant to advise IASA

on operational and financial matters; they advised IASA concerning whether, when, and how

its subsidiaries should be placed into b ankrupt cy; they mediated salary disputes; they

reviewed the draft of a complaint to be used in litigation; they urged IASA to convert from

state to federal charter; and they actively intervened when the Texas Savings and Loan

department attempted to install a supervisory agent at IASA. In each instance, FHLB-Dallas's

advice was followed.

Gaubert, 499 U.S. at ----, 111 S.Ct. at 1272, 113 L.Ed.2d at 344-45.

I n G aubert, the Supreme Court outlined a two-step test for applying the discretionary

function exception. First, the exception covers only acts that are discretionary in nature, involving

"an element of judgment or choice ," and not acts involving mandatory compliance with "federal

statute , regulation, or policy." G aubert, 499 U.S. at ----, 111 S.Ct. at 1273, 113 L.Ed.2d at 346.

Second, assuming that the conduct involves discretionary judgment, the exception applies only if the

governmental conduct is "based on considerations of public policy." G aubert, 499 U.S. at ----, 111

S.Ct. at 1274, 113 L.Ed.2d at 346-47.

Applying step one of its test to determine if the acts were discretionary, the Court held that

the relevant statutory provisions left to the judgment of the federal regulators the decision of when

to institute proceedings against any financial institution and which mechanism to use. G aubert, 499

U.S. at ----, 111 S.Ct. at 1277, 113 L.Ed.2d at 351. It also observed that "there is no t hing in the

language or structure of the statutes that prevented the regulators from invoking less formal means

of supervision of financial institutions." I d. at ----, 111 S.Ct. at 1277, 113 L.Ed.2d at 351. Applying

step two, the court held that the regulatory actions in question involved the kind of policy judgment

that the discretionary function exception to the FTCA was designed to shield. G aubert, at ----, 111

S.Ct. at 1278, 113 L.Ed.2d at 352. Therefore, Gaubert's claims were barred.Despite the similari ties between G aubert and this case, McNeily argues that some actions

taken by the regulators fail step one of the Gaubert test for determining discretionary function. He

invites us to examine regulatory actions that the Supreme Court had no occasion to discuss in

Gaubert. However, an examination of the particular regulatory actions of which McNeily complains

reveals that McNeily's claims fall within either the FTCA's discretionary function or the intentional

torts exclusion.

Fir st , McNeily complains of the federal regulators' failure to object to IASA's sale of

participations to the Income Fund. Relatedly, he argues that the regulators' approval was given on

t he basis of invalid appraisals. This activity falls within the discretionary function exception. The

regulators were properly concerned about IASA disposing of assets at bargain prices. The pleadings

suggest no other reason the regulators took this rather ordinary step of requiring IASA to obtain their

approval before sel ling its assets. McNeily's complaint alleges no facts indicating that the federal

regulators, with their broad obligation to supervise many institution s, knew or had reason to

investigate circumstances surrounding disposition of the savings and loan' s property other than to

ensure a fair price. Moreover, the complaint does not allege that the regulators took any steps to

assume the duties of the Income Fund's loan committee. Also, if IASA, through its invalid appraisals,

made misrepresentations of material fact upon which the Income Fund relied, and if the regulators

were responsible for those misrepresentations, McNeily's claim would arise out of misrepresentations.

Such a claim may not be pursued against the United States under FTCA. 28 U.S.C. § 2680(h).

Second, McNeily complains that the regulators, through IASA's officers and directors

violated the Securities Act of 1933 in connection with IASA's sale of the loan participations to the

Income Fund. McNeily also alleges that the regulators are responsible for an inaccurate 10k form

the Income Fund sent to its unit holders after it purchased the participations. The Securities Act of

1933 provides for civil liabilit y for any "person" who o ffers o r sells a security "by means of a

prospectus or oral communication, which includes an untrue statement of material fact or omits to

state a material fact necessary in order to make the statement ... not misleading." 15 U.S.C. § 77 l.

The Act also provides that "every person who ... controls any person liable under sections 77k or l2 Arguably, the Act's imposition of vicarious liability on a "controlling person" does not create a

mandatory course of conduct for that person to follow. See Underhill v. Royal, 769 F.2d 1426,

1432-33 (9th Cir.1985); G.A. Thompson & Co. v. Partridge, 636 F.2d 945, 957-58 (5th

Cir.1981); San Francisco Oklahoma Petroleum Exploration Corp. v. Carstan Oil Co., 765 F.2d

962, 965 (10th Cir.1985). If the regulators did not violate a mandatory duty, the United States is

protected by the discretionary function exclusions. 28 U.S.C. § 2680(a). of this title, shall also be liable jointly and severally with and to the same extent as such controlled

person." 15 U.S.C. § 77 o

. Assuming without deciding that these statutes create a mandatory duty

on the regulator, 2 McNeily's allegations on this claim seek relief a g ainst the United States for

misrepresentation of its agents. The fraud and misrepresentatio n exception, 28 U.S.C. § 2680(h),

bars this claim against the United States.

Third , McNeily complains that the federal regulators "disbanded" the Income Fund's Loan

Committee. This allegedly occurred in March, when the regulators obtained the resignations of IASA

officers and directors, two of which were also members of the Inco me Fund's loan committee.

However, resignations, without more, could not have caused the injury of which McNeily complains.

Indeed, given the allegedly fraudulent activities of the resigning loan committee members, it is hard

to see how their presence could be missed.

In addition to these specific complaints, McNeily resorts to vague allegations to the effect

that the fed e ral regulators unlawfully "seized" the Income Fund and "forced" the unit holders to

participate in w o rt hless loans. Relatedly, McNeily argues that the regulators assumed a duty to

operate the Income Fund in a non-negligent manner. What we know from the complaint suggests

that the Income Fund's outgoing officers engineered the purchases and needed no help from the

federal regulators. In any event, these allegations are vague and too conclusory to break down the

sovereign immunit

y of the United States. All of McNeily's claims against the United States are barred

by either the discretionary function or misrepresentation exception to the FTCA.

III.

On appeal, McNeily pursues three claims against the FDIC. First he argues that the FDIC

violated the Fifth Amendment by appropriating property belonging to the Income Fund's unit holders

for a governmental purpose without providing just compensation. Second, he argues that the FDIC,3 There is also authority holding the opposite to be true. Ascot Dinner Theater, Ltd. v. Small

Business Admin., 887 F.2d 1024, 1028 (10th Cir.1989). The Supreme Court has granted a writ

of certiorari in Meyer. --- U.S. ----, 113 S.Ct. 1576, 123 L.Ed.2d 146 (1993). when it assumed control of IASA and the Income Fund, assumed the contractual obligations of both

entities but then breached those obligations. Third, McNeily argues that the FDIC violated federal

RICO laws, 18 U.S.C. §§ 1961, et seq., in controlling the day -to-day activities of the Income Fund.

We consider these claims below.

Relying on Meyer v. Fidelity Sav., 944 F.2d 562, 567 (9th Cir.1991), McNeily argues that

the FTCA has no application to a constitutional tort claim brought against an agency like the FSLIC

which has consented to "sue or be sued." 3 The district court concluded that McNeily did not plead

a constitutional tort in his fifth amended complaint. McNeily contends that the district court had a

duty to read his complaint liberally , arguing t hat t he facts alleged in the complaint give rise to a

constitutional claim. The district court allowed McNeily to amend his complaint four times. The fifth

amended complaint pleads twenty-se ven claims against the FDIC, but makes no mention of an

unconstitutional taking. Under such circumstances, a dist rict court has no duty to "create a claim

which appellant has no t spelled out in his pleading." C ase v. State Farm Mutual Automobile

Insurance Co., 294 F.2d 676, 677-78 (5th Cir.1961).

On his breach of contract claims, McNeily concedes that the regulators are not parties to or

successors in interest to the contracts and di d no t expressly assume the contracts. He argues,

however, that the FSLIC's actions in "seizing control of the Income Fund," a non-federally regulated

entity, manifested the regulator's intent to assume the contractual obligations of IASA and the Income

Fund. The district court concluded that McNeily had no t met his burden of providing summary

judgment evid ence demonstrating that the FSLIC had impliedly assumed IASA's contractual

obligations under the partnership agreement, the prospectus or the mort gage services agreement;

McNeily had failed to show that the FSLIC's involvement in IASA went beyond "normal regulatory

activities" and indicated a specific intent to assume contractual obligations. We agree. The summary

judgment evidence reflects regulatory activity by FSLIC which it was authorized to conduct. This

conduct raises no inference that FSLIC intended to assume the contracts of the troubled institutionor its subsidiaries.

Finally, we reject McNeily's contention that the FDIC may be sued under the RICO statute.

As explained in Berger v. Pierce, 933 F.2d 393, 397 (6th Cir.1991), the FDIC is not "chargeable",

"indictable", or "punishable" for violations of specific state and federal crimin al provisions.

Therefore, McNeily cannot meet the requirement of showing a "racketeering activity," w hich is a

predicate for a civil RICO action. Berger, 933 F.2d at 397.

IV.

For the reasons stated above, we affirm the district court's orders dismissing McNeily's claims

against the United States and against the FDIC.

AFFIRMED.